1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 4858 1

STATE OF IDAHO ,
Plaintiff

- Respondent ,

v.

ELIAS MANUEL CUSTODIO ,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) Filed: December 21, 2021
Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Nancy A. Baskin , District Judge.

Order granting in part and denying in part I.C.R. 35 motion
, affirmed

. Elias Manuel Custodio, Boise, pro se appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen , Deputy Attorney General, Boise, for respondent.

________________________________________________ BRAILSFORD, Judge
Elias Manuel Custodio appeals the district court’s order concluding it lack ed jurisdiction to consider the portion of his Idaho Criminal Rule 35 motion challenging the decision of the
Commission of Pardons and Parole (Commission) denying his parole

. Because the court lacked jurisdiction to review Custodio’s parole denial , w e affirm.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Custodi o of voluntary manslaughter, Idaho Code § 18

- 4006(1); involuntary manslaughter, I.C. § 18

- 4006(2) ; aggravated battery, I.C. § § 18

- 903(a ), 18

- 907 (1) (b) ; and burglary, I.C. § 18

- 1401. The jury also found Custodio used a deadly weapon during the course of the first three offenses , resulting in a sentencing enhancement for those offenses, I. C. § 19

- 2520

. In February 1999, t he district court imposed aggregate concurrent sentences of thirty years with fifteen years determinate

.2

Custodio appealed . This Court affirmed the judgments of conviction and the sentences for voluntary manslaughter and burglary. State v. Custodio , 136 Idaho 197, 209, 30 P.3d 975, 987 (Ct. App. 2001). The Court, however, concluded Custodio’s convictions for volunt ary manslaughter, involuntary manslaughter, and aggravated battery all arose out of the same
indivisible course of conduct

. Id. at 208, 30 P.3d at 986. As a result, this Court held the district court erred by enhancing Custodio’s sentences under I.C. § 1 9

- 2520 for involuntary manslaughter and aggravated battery and remanded the case for resentencing

. Custodio , 136 Idaho at 208, 30 P.3d at 986. On remand
, the district court imposed unified sentences of ten years determinate for invo luntary manslaughter and fifteen years with five years determinate for aggravated battery

. Nineteen years later, i n 2020, Custodio filed a pro se Rule 35 motion
, arguing his sentences were illegal. Custodio’s m otion primarily criticized the Commission ’s decision not to parole him after he served the fifteen

- year determinate portion of the aggregate thirty

- year
sentence. The State opposed the motion with one exception. The State acknowledged Custodio’s fifteen

- year determinate sentence for burglary was illegal on its face because it exceeded the statutory minimum sentence of ten years

. The district court agreed with the State that Custodio’s sentence for burglary exceeded the statutory minimum and was illegal on its face, and it entered an order cor recti ng the error and
sentenced Custodio to ten years determinate for burglary. The district court, however, concluded that, to the extent Custodio’s motion requested discretionary reductions of his other sentences, his motion was untimely under Rule 35(b) and that the court lacked jurisdiction to review the Commission’s parole decision. Custodio timely appeals , contending the Unified Sentencing Act “is an illegal statute.”
II.
STANDARD OF REVIEW Pursuant to Rule 35, the district court may correct an illegal sentence at any time. In an appeal from the denial of a motion under Rule 35 to correct an illegal sentence, the question of whether the sentence imposed is illegal is a question of law freely reviewable by the appellate

court. State v. Josephson
, 124 Idaho 286, 287, 858 P.2d 825, 826 (Ct. App. 1993). Likewise, jurisdiction is a question of law that is reviewed de novo

. State v. Lute , 150 Idaho 837, 839, 252 P.3d 1255, 1257 (2011)

.3 III.
ANAL YSIS
Custodio asserts the Unified Sentencing Act , I.C. § 19

- 2513, is an illegal statute causing “systemic bias and racial disparity

. ” According to Custodio, members of mino rity populations
more often have parole denials and , as a result, serve more indet erminate prison time than
Caucasians . Based on this assertion, he contends his sentence is illegal under Rule 35. The State argues a Rule 35 motion is not the “appropriate vehicle” to address Custodio’s contention that he
and other members of minority po pulations have experience d racial discrimination under the
Act. Moreover, the State argues the district court did not have jurisdiction to review Custodio’s parole denial under Rule 35. We agree with the State

. Under Rule 35 (a) , an illegal sentence is “a sentence that is illegal from the face of the
record
, ” and the court may correct such a sentence a t any time. Rule 35(a) “only applies to a narrow category of cases in which the sentence imposes a penalty that is simply not authorized by law or where new evidence tends to show that the original sentence was excessive.” State v.
Clements , 148 Idaho 82, 86, 218 P.3d 1143, 1147 (2009)

. Contrary to Rule 35(a), Custo dio does not claim his sentence s exceed any statutory limit
and his claim that his sente nces are illegal under the Act is not obvious from the face of the record. Rather, Custodio’s claim of illegality is that, under the Act, he has served indeterminate prison time due to racial animus allegedly underlying the Commission’s parole decisions.
Rule 35 is not the appropriate procedure to make this challenge, however. T he Idaho Supreme
Court in State v. Huffman , 144 Idaho 201, 203, 159 P.3d 838, 840 (2007), noted the Commission “is vested with the discretion to grant or deny parole at any time a fter the completion of the determinate portion of a defendant’s sentence.” As a result, it ruled that c ourts cannot intrude on this discretion when reviewing a sentence. Id. ; see also State v. Alvarado , ___ Idaho ___, ___, 481 P.3d 737, 750 (2021 ) ( noting courts cannot intrude on Commission’s discretion ). T he Court
has also cautioned against judicially reviewing “ a defendant’s rehabilitative progress” beyond
the 120

- day jurisdiction limit imposed by Rule 35(b), noting such a review would “ clearly
vi olate the separation of powers” and encroach on “the pardoning and paroling authority of the executive branch” and “the power of the legislature to establish suitable punishment

. ” Brandt v.
State , 118 Idaho 350, 352, 796 P.2d 1023, 1025 (1990). According ly , the district court lacked jurisdiction under Rule 35 to review the Commission’s decision to deny Custodio parole and4

require him to serve time under the indeterminate portion of his sentence or to challenge the Act as illegal.
IV.
CONCLUSION
We affirm the district court’s order granting in part and denying in part Custodio’s
Rule 35 motion. Judge GRATTON and Judge Pro Tem MELANSON CONCUR

.